Voting Rights Act

A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people.

In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” In this instance DOMA did not survive that type of scrutiny.

In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

“DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Perhaps politicians will no longer do anything they can get away with to win elections, perhaps legislatures will no longer entrench themselves through districting and gerrymandering, perhaps, in short, in the recent past human nature has changed entirely. If not, though, the Supreme Court’s 5-4 decision invalidating the coverage formula of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 may well come to be regarded as one of the Court’s grand overreaches. As obtuse on race as Dred Scott, as judicially activist as Lochner, Shelby County moves us a long step away from the goal of reliable elections reflecting the will of the majority.

The underlying problem is that African Americans are, and have been, bloc voters to a degree matched by no other racial or ethnic group. There is, therefore, a potential electoral payoff for conservatives in suppressing or manipulating their right to vote that exists in no other context. African Americans also hold the balance of power in many jurisdictions, and because of residential segregation, can be subject to discriminatory treatment in a way that “Democrats” or even Asians or Latinos cannot. Accordingly, African Americans have always been an irresistible target for manipulation and disenfranchisement, and volumes of creative electoral provisions have been created to prevent them from voting effectively. Critically, the impulse to discriminate will remain even if racial animus has diminished, so long as political rewards for suppression remain in place.

In Shelby County, the Court, per Chief Justice Roberts, insisted that our nation had changed. It held that Congress in reenacting the Voting Rights Act in 2006, should not have used a coverage formula based on practices and registration figures from the 1960s and 1970s. The extraordinary burdens of the preclearance provisions, it explained, had to be justified by current conditions. For a variety of reasons, many outlined in Justice Ginsburg’s dissent, the holding is not persuasive.

The Supreme Court’s conservative majority has been itching to gut the landmark Voting Rights Act for some time and today it took a big step toward doing so. The conservative bloc led by Chief Justice John Roberts Jr. invalidated Section 4 of the Voting Rights Act (VRA), which includes a formula for determining the states, towns and localities that must obtain approval or preclearance from the federal government for proposed changes to their voting laws and procedures.

This time around a constitutional challenge brought by officials in a mostly white Alabama County gave the conservative bloc what it needed. Writing for the majority in Shelby County v. Holder, Roberts noted that in Northwest, his conservative colleagues “expressed serious doubt about the Act’s continued constitutionality.”

Roberts continued, “We explained that Sec. 5 ‘imposes substantial federalism costs’ and ‘differentiates between States, despite our historic tradition that all the States enjoy equal sovereignty.’ We also noted that ‘[t]hings have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.’ Finally we questioned whether the problems that Sec. 5 meant to address were still ‘concentrated in the jurisdictions singled out for preclearance.’” Sec. 4 includes the forumla for deciding what jursidictions must comply with the VRA's Sec. 5 preclearance provision.

Though the case raised constitutional claims of equality among Americans, like ensuring minorities are not deprived of a fundamental right to vote, the conservative justices in Shelby were much more interested in equality among the states. As they put, citing Northwest, a “fundamental principle of equal sovereignty. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’”

“The Voting Rights Act sharply departs from these basic principles,” Roberts wrote. “It suspends ‘all changes to state election law – however innocuous – until they have been precleared by federal authorities in Washington, D.C.”

The conservative bloc was also incredibly confident that voter discrimination in the covered jurisdictions, mostly in the South, is a thing of the past. The majority pointed to an increase in minority registration and turnout.

While voter discrimination allegedly subsided, Congress made the VRA more stringent and its formula for determining covered jurisdictions remained static, the majority groused. “Coverage today is based on decades-old data and eradicated practices,” Roberts wrote.

When Congress reauthorized the VRA in 1996, which it did overwhelmingly, it should have altered its coverage formula, Roberts argued. “It instead reenacted a formula based on 40-year-old facts having no logical relationship to the present day,” he said.

Roberts also claimed that the majority was carefully invalidating a provision of the VRA, and maintained the Court was providing “no holding” on Section 5. Instead Roberts said Congress could create a new formula.

The dissent, lodged by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, however, found that the majority had usurped a job for Congress, and in a rather sloppy manner. (Congress, Ginsburg wrote, should be given deference in its constitutional authority to create appropriate legislation to enforce the 14th and 15th Amendments.)

The Supreme Court's right-wing justices have another opportunity to greatly hobble the Voting Rights Act by finding its primary enforcement provision, Section 5, unconstitutional. And the high court is likely to issue its opinion any day now. But U.S. Rep. John Lewis (D-Ga.) at the 2013 ACS National Convention urged progressives to be ready to fight back, to not give up on equality.

Lewis, a civil rights hero, noted his upbringing in rural Alabama, fifty miles from Montgomery, during an era of Jim Crow, and his inspirations for fighting entrenched racism in an effort to create a more thoughtful and honest country. One where the Constitution's promises of equal protection and due process under the law are met.

“When I was growing up, I saw those signs that said 'white men, colored men,' and 'white women, colored women.' I would ask my mother, my father, my grandparents, my great grandparents, why? And they would say, 'That's just the way it is. Don't get in the way, don't get in trouble.' But I heard of Rosa Parks, heard the words of Martin Luther King, Jr. on the radio. The action of Rosa Parks, the leadership and words of Dr. King inspired me to get in the way, to get into trouble, good trouble, necessary trouble. And I think it's time for all of us once again to get into trouble, good trouble, necessary trouble.

“I have a strange feeling in America, at this point in history, we're just a little too quiet,” he continued. “We've come to a point where we almost want to resign, and say this is just the way it is. But it doesn't have to be this way. There are still too many people in our society who have been left out and left behind.”

Lewis focused on how one might react to the outcome of the Supreme Court's consideration of Shelby County v. Holder, the case challenging the constitutionality of the Voting Rights Act's Section 5 as a heavy-handed federal government intrusion on state sovereignty. Section 5 covers states and towns, mostly in the South, with long histories of keeping minorities away from the polls. The provision provides that those states must obtain preclearance from a federal court in Washington or the DOJ before making changes to their voting laws, including redistricting.

Even if the high court provides some gloomy news by striking Section 5 or weakening it, Rep. Lewis said there was no need to despair. Instead, liberals and progressives should be prepared to cause a bit of trouble, good trouble, as Rep. Lewis said.

“We've come to far, we've made too much progress to go back,” Lewis said. “We must move forward. We got the Civil Rights Act in 1964, the Voting Rights Act in 1965. I've always taken the position that the vote is precious. It is the most powerful, nonviolent tool we have in a democratic society, and we must use it.”

If the high court's right-wing justices successfully gut the Voting Rights Act, Lewis said we must be prepared to “fight the good fight, and never, ever give up.”

“We must get in the way, we must get in trouble, good trouble; use the law. Use the Constitution, to bring about a non-violent revolution right here in our country. Don't give up, don't give in, our struggle is one that does not last one day or one week, or one year. It is a struggle of a life time, or many life times. We must do what we can, as Dr. King said, to create the beloved community.”

Getting into trouble, standing in the way of right-wingers beholden to corporate America, and striving to create a smarter country. That sounds as challenging as it is inspiring.

June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.

The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.

Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula. Section 5 might remain "on the books" but it would be essentially a dead-letter.